14-03-2005 23:09									#91
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quote: Originally posted by GePap Except of course that the Constitution states: quote: Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. So the courts can speak about rights not actually enumerated in the Constitution and act on the basis of protecting said rights.

I've read my post a number of times but cannot find how your comment relates to what I actually wrote (as opposed to what you inferred from what I wrote).

	14-03-2005 23:14									#92
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quote: Originally posted by Imran Siddiqui Oh, it most definetly will be upheld by the higher courts. I'd be utterly shocked if USAnext was decided not to have libeled these people.

Sorry I missed this bit.

How is it libelous? As far as I read the article does not mention them at all. It appears to be copyright infringement but from the evidence to date I see no libel. They are a gay couple, they are portrayed as an example of a gay couple and nothing more appears to be said about them.

That, of course, has nothing to do with their 'right to privacy'.

	14-03-2005 23:17									#93
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quote: How is it libelous? As far as I read the article does not mention them at all. It appears to be copyright infringement but from the evidence to date I see no libel. They are a gay couple, they are portrayed as an example of a gay couple and nothing more appears to be said about them.

It's implying that they are against the troops, ie, unpatriotic. The ad draws an X through a soldier and a check mark through a picture of them kissing.

	14-03-2005 23:26									#94
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quote: Originally posted by Boris Godunov It's selling an idea, and USANext got paid to make and post the advertisement.

An idea is not soup. AFAIK the supremes have made the point many times that political speech is seperate from 'normal' speech and is protected more forcefully than normal speech. Whether USAnext got paid is irrelevant, this is clearly political speech.

I take Imrans word that political speech can be libelous, however, I dont see the libel. I agree that their privacy was invaded to some degree (but that was by the newspaper) but I have to wonder to what extent a gay couple kissing on the San Francisco court house during the recent marriages expects their sexual preferences to remain private.

If the article had commented on them personally or the generic evil of gays in some way I'd have a different view.

	14-03-2005 23:30									#95
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Well I think the insinuation is that they are not true Americans (the X through the soldier in favor of them) is very troublesome indeed.

	14-03-2005 23:30									#96
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quote: Originally posted by Imran Siddiqui quote: How is it libelous? As far as I read the article does not mention them at all. It appears to be copyright infringement but from the evidence to date I see no libel. They are a gay couple, they are portrayed as an example of a gay couple and nothing more appears to be said about them. It's implying that they are against the troops, ie, unpatriotic. The ad draws an X through a soldier and a check mark through a picture of them kissing.

The group that is being singled out as unpatriotic is the AARP not gays.

EDIT

There is an insinuation against gays, but lets face it anyone who believes the nonsense that gays are unpatriotic already hates gays anyway. This ad is aimed at describing the political views of the AARP not gays.

	14-03-2005 23:40									#97
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quote: The group that is being singled out as unpatriotic is the AARP not gays.

It's the AARP AND the gays which are being pointed at! Saying the AARP backs gays and doesn't back the soldiers seems also to imply the gays aren't patriotic (the AARP is being anti-American by not backing true Americans)

	15-03-2005 00:41									#98
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Imran - I have to get to sleep.

1) I'll come back to the Marijuana bit and look up Scalia's decision, I hope he wrote something - he typically does, I have to give him that.

2) You have not discussed the various federal criminal statutes that are intrastate, i.e. selling drugs near a school, ad naseum. Scalia I believe has supported some of those based on practical arguments, though I could be confusing with Rehnquist, some of these decisions date back to when I was just starting to really moniter what SCOTUS says.

3) Assisted suicide - withholding Federal license for prescribing schedule 2 drugs, some of which are critical. By a strict reading of the commerce clause, the Feds can only regulate who they are shipped to, not who prescribes them inside the state. Want to bet Scalia supported this (Federal intervention over a state permitting assisted suicide) - I haven't looked up the details in the case yet, or his speeches. I'll wager an avatar for a month - care to try?

This is part of the Feds anti-drug power grab that started in the 1930's. It is very non-strict constructionist, the states should completely control Physician licensure in that area. They do in all other areas, and routinely require professionals to relicense when they relocate. In fact I believe they do that in your profession.

4) Your argument reference sales that it could "possibly" be sold interstate - you are stretching the point to uphold your strict constitutionalist premise.

It would be up to the federal government to prevent that shipping, or the involved state. It's done for overweight trucks. If you are justifying trampling on state's rights due to a possible infraction, you are now going into the same realm where the Supreme Court abused the Interstate clause and gave us the current state of federal intervention with the states.

That is the problem with most conservatives, and so-called strict constructionists. When the strict interpretation interferes with it, then they claim "But it's different" when it occurs in an area they want regulated/criminalized/etc. I respect Berzerker - I may disagree, but he is remarkably consistent. Your arguments on the marijuana are weak, at best, and want me to go through Scalia's decisions?

The man is not as consistent as Berzerker, by a long shot. He has this terrible blind spot based on his conservative Catholic morality. I wanted to be a priest at one time, so I very much understand exactly what his viewpoints are. Look at his speeches as well, which he gives as a Justice of SCOTUS. I still stick by my premise, he may be the closest we have to a strict contructionist, but he is by no means strict it he doesn't like the result, i.e. he's still an activist. He just does a better job of justifying his results - the man is brilliant, unlike Thomas he most definitively is qualified to be a Justice.

My wife is going to kill me for posting this, these kinds of post always wake me up and cause me to have trouble getting back to sleep. I should never check these when I wake up, but I typically enjoy your responses. You do stay on topic and refrain from personal attacks, which I like. Even when disagree.

	15-03-2005 00:55									#99
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quote: That is the problem with most conservatives, and so-called strict constructionists. When the strict interpretation interferes with it, then they claim "But it's different"

That's your problem in this debate. You say that is the problem with 'conservatives'... what about the liberals on the court. You seem to think that the only people who don't hold to their own principles are the conservatives, but the liberals who have been on the court have changed their views on various cases (John Paul Stevens for one).

And on the med marijuana case there are precedents which talk about interstate effects of intrastate commerce (such as Wickard). In this integrated economy, you can't think that commerce on such a scale as medical marijuana in a state would not impact the economy in other states. The Commerce Clause has already been interpreted as any commerical activity that affects interstate commerce, even if the buying and selling is done solely within one state (by a New Deal court, surely, but the precedent has never been struck down).

He may not be consistent as Berzerker, that is true, but there is also the fact that he MUST get 5 justices to agree with him. That requires temperment of opinions. Even in dissent, you must temper, so that in the next case perhaps you can get the 5 you need. Perhaps his morality does hurt him in some ways, but I don't think you can say that he isn't a strict constructionist because of it.

After all, isn't every close argument, no matter how 'consistent' you are, a justification or a claim of "it's different". Many who may be called consistent have made subtle distinctions and pointed to small differences to make something fit. No one is 100% clearly consistent, so it's not fair to hold Scalia to that standard, especially when considering very complex cases.

edit: as for assisted suicide, see my post following this one.

	15-03-2005 01:00									#100
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Oh, as for Scalia and assisted suicide. Here is an exerpt from Cruzan:

quote: While I agree with the Court's analysis today, and therefore join in its opinion, I would have preferred that we announce, clearly and promptly, that the federal courts have no business in this field; that American law has always accorded the State the power to prevent, by force if necessary, suicide - including suicide by refusing to take appropriate measures necessary to preserve one's life; that the point at which life becomes "worthless," and the point at which the means necessary to preserve it become "extraordinary" or "inappropriate," are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory; and hence, that even when it is demonstrated by clear and convincing evidence that a patient no longer wishes certain measures to be taken to preserve her life, it is up to the citizens of Missouri to decide, through their elected representatives, whether that wish will be honored. It is quite impossible (because the Constitution says nothing about the matter) that those citizens will decide upon a line less lawful than the one we would choose; and it is unlikely (because we know no more about "life-and-death" than they do) that they will decide upon a line less reasonable.

And here was his view on the Oregon assisted suicide law:

http://www.click2houston.com/health/1229221/detail.html

---

quote: I'll wager an avatar for a month - care to try?

Nah, I won't make you change your avatar .

	15-03-2005 01:10									#101
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Except the liberals don't claim to be "strict construtionists." Scalia does, as do most conservatives, so then I can hold them to that standard. You will also note that I found the Kennedy decision on juvenile execution very poorly done.

You just made my point via Wickard and the Commerce Clause. You are claiming jurisprudence for the weakening of the so-called strict constructionist line. The strict constructionists need to make up their mind. They claim stict constructionist when they don't like a liberal decision. They claim jurisprudence, i.e. Wickard when they want to use it to expand federal powers. You'll also not I've said that Scalia is the closest we have to a strict construtionist. It's just that none of them really makes the cut when you compare their being a strict constructionist even in cases it produces a result they do not like and can justify with jurisprudence. To be a true Strict Constructionist you almost have to be as extreme as Berzerker. You couldn't get appointed to SCOTUS, liberals and conservatives would go after you.

Note that it is exactly those conservative inconsistencies that the liberal activist judges then use to justify their decisions. I am not fond of either group of judges who use result-oriented justifications for their activism. My point is that it's the conservatives who claim the protective mantle of "strict constructionist" not the liberals, and then try to justify what they do when they are blatantly being activist. At least when my wife gets home I can show her the new Star Wars trailer and ask her to tuck me into bed.

	15-03-2005 01:18									#102
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quote: Except the liberals don't claim to be "strict construtionists."

Liberals claim to be other things. They say they focus their decisions on other principles. Stevens, for example, flip flops his reasoning by the case.

quote: You just made my point via Wickard and the Commerce Clause.

I don't see where I have. Do you seriously not believe that intrastate commercial activity affects interstate commerical activity? I think that is a silly position to take. Wickard may have been the extreme, but at the very least, medical maijuana is actual commerce.

And what is this 'true' strict constructionist stuff? You almost sound like a Republican policy guy who says an individual who is against the PATROIT Act isn't a 'true' Republican, because they are not 100% on board.

The text of the Constitution is vague (contrary to what those like Berzerker think) and can be read in different ways. I don't see how that invalidates your strict constructionalism chops to admit that.

	15-03-2005 01:43									#103
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quote: You almost sound like a Republican policy guy who says an individual who is against the PATROIT Act isn't a 'true' Republican, because they are not 100% on board

That is my point. I am not just condemning Scalia (who I keep noting is the closest thing we have to a strict constructionist) but exactly the kind of person you used in your example. My point is not just Scalia, but the entire direction the strict constructionist - conservative argument has been taking in the Republican party.

quote: Do you seriously not believe that intrastate commercial activity affects interstate commerical activity? I think that is a silly position to take.

I can drive a tractor trailer through that hole - my wife just got home and suggested I add in my sleep since it's about 2AM equivlent for me. (she just me told me TU). So has Congress for over half a century.

I am not a strict construtionist, believe it or not though I find myself agreeing with Berz more and more. The constitution is over two centuries old, and it cannot cover everything that happens today any more than the Bible can. History as well as what is written should be guiding factors, which is why I find the torture memos by Gonzales, our now Attorney General, so frightening. The founders of our country and framers of the constitution had an abhorrence of torture. That's why I gave kudoes to Scalia and Stevens in the Hamdi case - any amount of indefinite detention was equally abhorrent.

I do find laws like the Patriot Act disturbing, and the policy of the Neocons to push their agenda at the expense of the processes of democracy and government frightening. The liberals back in the 1960's were just as egregious - but I wasn't even a teenager yet. I am concerned with the neocons, the Federalist society, and the current trends that, IMHO bode very badly for the continued existance of the United States as a bastion of democracy.

While we both may disagree with Berzerker on many things, he has a point. Many of the areas you and I agree on, Imran, are a result of the steady erosion of the powers of Congress and the imperial executive, both in contravention of the Constitution. Berzerker can trace very convincely the breakdowns in Constitutional usage that have caused that. While I find some of his statements problematic, i.e. fine this is the wrong thing to do, give me an anwer that will work in 2005, he is still right, he just has problems with modern solutions.

Good night, and I'll check in the morning.

	15-03-2005 01:49									#104
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quote: My point is not just Scalia, but the entire direction the strict constructionist - conservative argument has been taking in the Republican party.

You mean like saying Hamdi has to go free, or that assisted suicide is something the states alone should decide?

You didn't respond to my assisted suicide post I see.

quote: I can drive a tractor trailer through that hole

It's still the case though. Interstate commerce is subject to the dictates of supply and demand and intrastate commerce affects those lines on the graph. I think Wickard went too far, but merely because it wasn't commerce.

	16-03-2005 00:19									#105
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I forgot about the assisted suicide, I got so caught up in the other issues. Actually, I am slightly off base - I mixed the current case up with the previous two, where he supported the state's right to prohibit assisted suicide. On reading his reasoning, though, I realize that those are cases not where he was against assisted suicide, but was for the state's right to bann it (nice distinction if one has terminal systemic metastisized cancer ) However, I suspect you have me on that one, reading Scalia's opinions on Assisted Suicide make me hopeful that he will support a State's right to permit it in this case. We'll see.

However, I note you don't deal with my other premise - that Scalia supports State's rights over individual rights unless specifically enumerated in the constitution. State's get the benefit of the doubt with Scalia, inidividuals when in opposition to the State do not. That is made clear by both of those decisions - supporting state ban's on assisted suicide - and his other statements.

quote: The commandments are ``a profound religious message believed in by a vast majority of the American people,'' Scalia said. ``There's nothing wrong with the government reflecting that.''

Vesus what the constitution says.

quote: Article III Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

Judicial activism, pure and simple - his statement during arguments over the 10 commandments case. Do you want to be a Sikh arguing your right for your child to carry a symbolic, utterly unusable dagger (which occured in California, by the way) when confronted with that. Or a native American opposing the state when trying to uphold their right to using Peyote on a ceremonial basis? In fact...

quote: Our decisions reveal that the latter reading is the correct one. We have never held that an individual's religious beliefs [494 U.S. 872, 879] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate

The State can regulate behavior, as long as it does not specifically target the religion, as long as it has a "compelling" interest - please find me the "compelling interest" override clause in the Constitution or the Bill of Rights. That phrase - compelling interest - is a summation of a long and convoluted opinion used to f**k Native Americans, which the United Council of Churches opposed (they supported the Native Americans). Essentially Scalia overturned jurisprudence in force since prohibition, excempting sacremental wine (which is why the United Council of Churches filed a Friend of the Court brief). but I guess that is not "...a profound religious belief held by the majority of Americans..."

Oh, checking for what he has said about gays, I came upon this very telling quote, from his speech at the Manhattan Institute for Policy Reseach in 1997 :

quote: Once upon a time The Constitution was regarded by all Americans as containing two characteristics. Number one, it contained a limited number of guarantees. They were set forth, a few of the personal guarantees, in the text of the document. Most of the personal guarantees in the Bill of Rights. And there they were. They were recited. But it was a closed set.

He does not believe in the IX and X amendments of the Bill of Rights as applying to individuals. There, in cold hard text.

quote: You want a right to an abortion? Adopt it the way most rights are adopted in a free society, pass a law. You don't want a right to an abortion? Pass a law the other way. You want a right to die? And so forth, right down the list of all of the social issues that are brought to the Supreme Court. No, no, no, no, no. A constitution is not for flexibility. A constitution is for rigidity.... The Bill of Rights was a very small exception. Just a few things we will take out of this democratic process and guarantee absolutely, unless you can amend The Constitution. A very few things.

So if not enumerated, they never devolve to the people, you have to get a law passed. So the majority can always impose it's will unless carefully enumerated by the Bill of Rights, 200 years ago. Puh-lease.

quote: Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Rights retained by the people. Not Scalia's rigid, carefully circumscribed reading that lets the states and the majority screw over those who do not "...believed in by a vast majority of the American people...". He does not even see his inconsistancy, which is why Smith (the Native American Church case) was roundly condemned, as was Scalia's convuluted reasoning. It was the same reasoning that has been used time and time again to try to marginalize religious groups, from the Mormons to the Native Americans, and make an end run around the first amendment.

I've granted him and Stevens (one of those "gasp" liberal judges - maybe they can read the constitution, just they read Article IX and X a little bit differently) the high ground on Hamdi, from the get go. In fact I brought it up immediately after the case.

Your support of the use of the Interstate Commerce clause to largely invalidate large portoins of the constitution is interesting, it's one of convenience. As the current situation with state regulation of interstate shipment of alchohol has proven - it can be enforced, it's just a royal pain. Since there is a working mechanism, the argument about marijuane and commerce is specious, i.e. the is no compelling case.

Am I off base, or do you have a very high regard for jurisprudence? I don't, but as I've said - I'm a historian by avocation, not a lawyer. It's a different world view, that at times is in agreement, and at other times, well, we can agree to disagree.